Laveck v. Vill. Bd. of Trs. of the Vill. of Lansing

• Citation: 145 A.D.3d 1168,2016 N.Y. Slip Op. 08150,42 N.Y.S.3d 460
• Parties: In the Matter of James LAVECK, Appellant, v. VILLAGE BOARD OF TRUSTEES OF the VILLAGE OF LANSING, Respondent.
• Decision Date: 01 December 2016
• Court: New York Supreme Court Appellate Division

145 A.D.3d 1168
42 N.Y.S.3d 460
2016 N.Y. Slip Op. 08150

In the Matter of James LAVECK, Appellant,
v.
VILLAGE BOARD OF TRUSTEES OF the VILLAGE OF LANSING, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 1, 2016.

42 N.Y.S.3d 461

Trevor J. DeSane, Center for Wildlife Ethics Inc., New York City, for appellant.

William J. Troy III, Ithaca, for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

CLARK, J.

145 A.D.3d 1168

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered December 24, 2015 in Tompkins County, which dismissed

42 N.Y.S.3d 462

petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Mayor of the Village of Lansing partially denying petitioner's Freedom of Information Law request.

In conjunction with the Department of Environmental Conservation and Cornell University, the Village of Lansing, a municipal corporation located in Tompkins County, participates in a deer management program that, subject to various restrictions, allows approved hunters to hunt and kill deer with bows and arrows on the private property of consenting landowners in the Village. In January 2015, petitioner submitted a Freedom of Information Law (see Public Officers Law art. 6 [hereinafter FOIL] ) request to respondent seeking numerous documents relating to the Village's deer management activities, including all communications with property owners in the Village. In response, Jodi Dake, the Village clerk and treasurer, provided petitioner with a list of documents that would be made available to him upon payment of copying costs (see Public Officers Law § 87[1][b][iii] ), as well as the cost of employee time required to prepare the copies. Dake explained that some of the documents could not be reproduced electronically,

145 A.D.3d 1169

as requested by petitioner, due to redactions that were necessary “to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons.”

Petitioner appealed to the Mayor (see Public Officers Law § 89[4][a] ), asserting, among other things, that the justifications provided for the redactions were insufficient and that the imposition of costs for redacted copies and employee preparation time was improper. The Mayor, concluding that petitioner's “[r]equest involved records that included material that could properly be redacted,” upheld the imposition of copying costs incurred as a result of the redactions, but determined that petitioner could not be charged for employee preparation time. Petitioner then commenced this CPLR article 78 proceeding seeking, among other things, an order directing respondent to provide complete and unredacted electronic copies of all requested records. Following joinder of issue, Supreme Court dismissed the petition, concluding that the safety and lives of landowners who participated in the deer management program could be endangered by the release of information revealing their identities and therefore such information was exempt from disclosure under Public Officers Law § 87(2). Petitioner appeals.

Under FOIL, “[a]ll government records are ... presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2) ” (Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274–275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ; see Matter of Johnson v. Annucci, 138 A.D.3d 1361, 1362, 28 N.Y.S.3d 922 [2016], lv. denied 27 N.Y.3d 911, 2016 WL 3553444 [2016] ). These exemptions are construed narrowly and the burden rests on “the public agency to demonstrate that ‘the material requested falls squarely within the ambit of one of the[ ] statutory exemptions' ” (Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 362, 746 N.Y.S.2d 855, 774 N.E.2d 1187 [2002], quoting Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979] ; see Public Officers Law § 89[4][b] ; Matter of Columbia–Greene Beauty Sch., Inc. v. City of Albany, 121 A.D.3d 1369, 1370, 995 N.Y.S.2d 340 [2014] ). “[T]he [public] agency must articulate ‘particularized and specific justification’ for not disclosing requested documents”

42 N.Y.S.3d 463

(Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808, quoting Matter of Fink v. Lefkowitz, 47 N.Y.2d at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 ; see Matter of Rose v. Albany County Dist. Attorney's Off., 111 A.D.3d 1123, 1125, 975 N.Y.S.2d 258 [2013] ); conclusory assertions, unsupported by facts, will not suffice (see Church of Scientology of N.Y. v. State of New York, 46 N.Y.2d 906, 907–908, 414 N.Y.S.2d 900, 387 N.E.2d 1216 [1979] ;

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